Yesterday (16 February 2023), the Court of Justice delivered its judgment on the case No C-393/21, Lufthansa Technik AERO Alzey GmbH v. Arik Air Limited et al.
The dispute in the main proceeding concerns a request for a stay of the enforcement proceedings brought against Arik Air on the basis of a European Enforcement Order issued by a German court in favour of Lufthansa.
After having obtained the European Enforcement order in December 2019, Lufthansa instructed a bailiff operating in Lithuania to carry out the enforcement order. Subsequently, Arik Air: (i) applied to the competent German court, on the basis of Art 10 of Regulation (EC) No 805/2004, seeking the withdrawal of the European Enforcement Order certificate and the termination of the compulsory recovery of the debt, and (ii) submitted to the bailiff in Lithuania a request for the enforcement proceedings to be stayed until the German court has given a final ruling on its application.
The latter request, which was upheld by Regional Court of Kaunas (after the previous bailiff’s refusal and District Court of Kaunas’ dismissal), has been challenged by Lufthansa before the Supreme Court of Lithuania, which referred several questions to the Court of Justice for a preliminary ruling: (i) on the concept of “exceptional circumstances” as a ground to stay the enforcement proceedings, according to Art 23(c) of Regulation No 805/2004; (ii) on whether Art 23 of the Regulation permits a simultaneous application of the measures limiting the enforcement proceedings; and (iii) on whether the suspension of the enforceability, in the Member State of origin, of a judgment certified as a European Enforcement Order requires the court of the Member State of enforcement to stay the enforcement proceedings.
In the decision, the Court of Justice stated as follow.
(i) Art 23(c) of Regulation No 805/2004 must be interpreted as “meaning that the concept of ‘exceptional circumstances’ contained in that provision covers a situation in which continued enforcement proceedings in respect of a judgment certified as a European Enforcement Order, where the debtor has challenged that judgment or has brought an application for the rectification or withdrawal of the European Enforcement Order certificate in the Member State of origin, would expose the debtor to a real risk of particularly serious harm, the reparation of which would prove impossible or extremely difficult if that judgment were to be annulled or the European Enforcement Order certificate were to be rectified or withdrawn. That concept does not refer to circumstances connected with the judicial proceedings brought in the Member State of origin against the judgment certified as a European Enforcement Order or against the European Enforcement Order certificate”.
(ii) Art 23 of Regulation No 805/2004 must be interpreted as “permitting the simultaneous application of the measures limiting the enforcement proceedings and requiring the provision of security laid down in subparagraphs (a) and (b), but not the simultaneous application of either one of those two measures and that staying the enforcement proceedings under subparagraph (c)”.
(iii) Art 6(2) of Regulation No 805/2004 must be interpreted as “meaning that, where the enforceability of a judgment certified as a European Enforcement Order has been suspended in the Member State of origin and the certificate referred to in Article 6(2) has been produced before the court of the Member State of enforcement, that court is required to stay, on the basis of that judgment, the enforcement proceedings initiated in the latter State”.
On Regulation No 805/2004 and on the protection of debtors in cross-border enforcement, the readers of RDIPP may refer to:
Fernando Gascón Inchausti, 2020, No 2, 255 ff.; Luigi Fumagalli, 2006, No 1, 23 ff.
Moreover, see, in our Book Series:
Francesca C. Villata (ed.), Book No 86.